United States Postal Service – Breach of Contract, Breach of the Duty of Fair Representation under a Collective Bargaining Agreement, National Labor Relations Act.

UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

ROBERT W. TRIBBLE, Jr.,

Plaintiff,

v. Case No.:

UNITED STATES POSTAL SERVICE
and MID-FLORIDA LOCAL 7138,
AMERICAN POSTAL WORKERS
UNION, AFL-CIO,

Defendants,

________________________________ /

COMPLAINT
AND
DEMAND FOR JURY TRIAL

BREACH OF CONTRACT
AND
BREACH OF THE DUTY OF FAIR REPRESENTATION

Plaintiff, ROBERT W. TRIBBLE, Jr., (hereinafter “Plaintiff”), by and through his undersigned attorney, sues Defendants UNITED STATES POSTAL SERVICE (“USPS”) and MID-FLORIDA LOCAL 7138, AMERICAN POSTAL WORKERS UNION, AFL-CI0, (“Local 7138”), for Breach of Contract and Breach of the Duty of Fair Representation under a Collective Bargaining Agreement, and would show this Honorable Court the following:

JURISDICTION AND PARTIES

1. This suit is brought and jurisdiction lies pursuant to the National Labor Relations Act, 29 U.S.C. §151 et seq.

2. This Court has jurisdiction over this federal question claim pursuant to 28 U.S.C. Subsection 1331 and 1337.

3. Venue is proper within the Middle District of Florida pursuant to 29 U.S.C. 187(b).

4. All conditions precedent to jurisdiction have occurred or been complied with.

5. The Plaintiff is a citizen of the United States and the State of Florida.

6. USPS is a corporation duly authorized to conduct, and regularly conducting business in the State of Florida.

7. USPS is and has been engaged in industry that effects commerce within the meaning of the National Labor Relations Act.

a. USPS is operating, conducting, engaging in, or carrying on a business or business venture in this state or has an office or agency in this state;

b. USPS is engaged in substantial and not isolated activity within this state;

c. USPS’ actions within and connections with the forum state are such that it should have reasonably anticipated being hailed into court in this state; and

d. USPS has purposefully availed itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.

8. The wrongful employment practices alleged herein were committed
within the State of Florida, and within the Middle District of Florida, at Lake Mary, Florida.
9. LOCAL 7138 is a labor organization within the meaning of the National Labor Relations Act.
10. LOCAL 7138 conducts business in the State of Florida.
11. LOCAL 7138’s principal place of business is at 800 Rinehart Road, Lake Mary, Florida 32795.
12. LOCAL 7138 is the bargaining representative of the persons employed by USPS as, among other things, Mail Clerks and Maintenance Control Clerks at the Mid-Florida Mail Processing Center at Lake Mary, Florida.

GENERAL FACTUAL ALLEGATIONS

13. At all times relevant to the allegations contained herein, Plaintiff was employed by USPS as a Mail Clerk at its Mid-Florida Mail Processing Center at Lake Mary, Florida.
14. At all times relevant to the allegations contained herein, during the course
of Plaintiff’s employment with USPS, LOCAL 7138 served as Plaintiff’s bargaining representative.

COUNT I
BREACH OF CONTRACT

15. Plaintiff incorporates and re-alleges, as fully as if set forth herein, paragraphs 1 through 14 of this Complaint.
16. During the course of Plaintiff’s employment with USPS, Plaintiff’s
bargaining representative, LOCAL 7138 was party to a Collective Bargaining Agreement
(hereinafter, “National Agreement”) with USPS, which provided certain terms and
conditions of employment governing certain USPS employees. As a member of LOCAL 7138 and employee of USPS at the Mid-Florida Mail Processing Center at Lake Mary, Florida, Plaintiff’s employment was covered by this National Agreement.
17. On March 14, 1994, USPS posted a notice of a job vacancy for the position of Maintenance Control Clerk at its Orlando, Florida facility.
18. As of March 14, 1994, the Plaintiff had been for some time, on a promotion eligibility job register for the position of Maintenance Control Clerk for USPS. The Plaintiff had previously been tested for the position requirements for the position of Maintenance Control Clerk and had been declared eligible for a vacancy in that position.
19. The employee whose name immediately preceded Plaintiff’s on the Maintenance Control Clerk promotion eligibility register was offered the vacant Maintenance Control Clerk position by USPS during October 1994. That person declined the offer and notified Plaintiff that since he was the next person listed on the register, he should be contacted regarding the vacant position shortly.
20. Plaintiff was not contacted regarding the vacant Maintenance Control Clerk position. Plaintiff made several inquiries to USPS and was told that USPS was checking into his eligibility, which had already been certified as documented by the fact that Plaintiff’s name was listed on the Maintenance Control Clerk promotion eligibility register.
21. On November 23, 1994, USPS re-posted the same vacant Maintenance Control Clerk position for bids without having contacted Plaintiff regarding the vacancy.
22. Plaintiff was duly qualified for and did in fact want to be promoted to the position of Maintenance Control Clerk. Plaintiff contacted USPS on several occasions regarding his desire to be placed in the vacant position.
23. Article 38, Section 5.A.5 of the National Agreement between the American Postal Workers Union, AFL-CIO and United States Postal Service states, “Where a vacant or newly established duty assignment cannot be filled from an established preferred assignment register, and the assignment is to be filled by means of a promotion, selection shall be made from the appropriate promotion eligibility register.” Defendant USPS violated this provision when it failed to hire the Plaintiff, who was the next in line on the Maintenance Control Clerk promotion eligibility register, following the employee who had been offered and turned down the vacant position.
24. The violation of the National Agreement by USPS constitutes a breach of the collective bargaining agreement between USPS and American Postal Workers Union, AFL-CIO.
25. Plaintiff, as a USPS employee and American Postal Workers Union, AFL-CIO member, was covered by the National Agreement, and therefore was an intended beneficiary of the National Agreement between USPS and American Postal Workers Union, AFL-CIO. As an intended beneficiary of this National Agreement, Plaintiff has a right of action for breach of contract against USPS.
26. As a result of USPS’ breach of contract, Plaintiff has lost income, promotion possibilities and other valuable job rights.
27. Plaintiff has retained the undersigned attorney and agreed to pay him a reasonable fee.
WHEREFORE, Plaintiff prays that this court order that the Plaintiff be awarded back pay, front pay and other compensatory damages and all other damages to which he may be entitled, together with his attorney fees and costs of this action, as will make him whole.

COUNT II
BREACH OF THE DUTY OF FAIR REPRESENTATION

28. Plaintiff incorporates and re-alleges, as fully as if set forth herein, paragraphs 1 through 14 and 16 through 23 of this Complaint.
29. Pursuant to the National Agreement, Plaintiff filed a grievance in regard to his non-selection for the vacancy of maintenance control clerk. LOCAL 7138 handled the grievance up to and through an arbitration proceeding pursuant to the National Agreement.
30. After having been denied three times, Plaintiff’s grievance was appealed to arbitration by LOCAL 7138 on June 26, 1995. The American Postal Workers Union, AFL-CIO’s National Business Agent appealed Plaintiff’s grievance to arbitration.
31. On or about July 1998, Plaintiff’s grievance was finally scheduled for arbitration. Plaintiff’s key witness, the employee whose name had immediately preceded Plaintiff’s on the Maintenance Control Clerk promotion eligibility register and who had been offered the position and had declined, was on leave and not available to testify at the arbitration hearing. Because Plaintiff’s witness was unavailable to testify, the arbitration hearing was postponed.
32. By November 8, 1998, Plaintiff had still not heard from any representative at LOCAL 7138 as to when the postponed arbitration hearing would be rescheduled. At that time, Plaintiff had not been informed of any settlement in regard to his grievance.
33. On or about November 8, 1998, Plaintiff sent a letter to the National Business Agent for the American Postal Workers Union, AFL-CIO inquiring as to why his arbitration hearing had not been rescheduled.
34. On or about December 14, 1998, the National Business Agent, Clerk Division, for the American Postal Workers Union, AFL-CIO sent to Plaintiff a letter explaining that Plaintiff’s grievance was handled and closed on August 3, 1998. Attached correspondence showed that Plaintiff’s grievance had been settled by his LOCAL 7138 representative in his absence on August 3, 1998. The settlement agreed to by LOCAL 7138 and USPS with regard to Plaintiff’s grievance stated as follows, “After further development of the facts, the vacancy posting 94-05 was not residual but was awarded to Rubin Harris on 3/22/94. Posting 94-27 was awarded as required by the National Agreement pursuant to Article 38. Therefore rendering this issue moot.” The settlement finding failed to address Plaintiff’s grievance. Specifically, the settlement did not address why the very same Maintenance Control Clerk position was still vacant as of October 1994; why the employee directly preceding Plaintiff on the Maintenance Control Clerk register had been contacted for the vacant position if the position had supposedly already been filled; and why Plaintiff was never contacted for the position after the prior employee had been offered the position and declined it.
35. LOCAL 7138 has never offered Plaintiff any explanation as to why his grievance was settled without his presence and without Plaintiff’s having had any opportunity to present testimony in support of his position, specifically regarding who was offered the vacant position and when.
36. LOCAL 7138 had a duty to fairly represent Plaintiff with respect to the processing of any grievances arising under the National Agreement. LOCAL 7138 failed to notify Plaintiff of the continuation of his arbitration hearing and failed to give Plaintiff any opportunity to present material and relevant testimony in regard to his grievance.
37. LOCAL 7138 mishandled Plaintiff’s grievance at arbitration in part because Plaintiff had previously disagreed with, taken issue with and tried to address with Defendant LOCAL 7138’s leadership certain issues regarding union mis-management.
38. LOCAL 7138 handled the situation involving the failure to give Plaintiff any notice of the scheduled date of the continuation of his arbitration in a grossly negligent and perfunctory manner, which prejudiced the outcome of Plaintiff’s grievance at arbitration.
39. As a result of USPS’ breach of contract, and LOCAL 7138’s unfair and arbitrary representation of the Plaintiff, Plaintiff has lost income, promotion possibilities and other valuable job rights.
40. Plaintiff has retained the undersigned attorney and agreed to pay him a reasonable fee.
WHEREFORE, Plaintiff prays that this court order that the Plaintiff be awarded

back pay, front pay and other compensatory damages, and all other damages to which he may be entitled, together with his attorney fees and costs of this action, as will make him whole.